Government must remember First Amendment protects unpopular views, too
By Douglas Lee
Special to freedomforum.org
Even by politically correct standards, this overreaction to speech is
The startling facts in this case became national news recently, when
the 9th U.S. Circuit Court of Appeals held in White
v. Lee that employees of the U.S. Department of Housing and
Urban Development had unlawfully investigated three California residents. The
residents' alleged crime? Speaking out against a proposed housing project for
the mentally and physically disabled.
According to the HUD employees, the residents' protests violated the
Fair Housing Act, which prohibits discriminatory housing practices. By
protesting the conversion of a motel into a housing unit for the homeless, the
HUD employees said, these residents were discriminating against the
The 9th Circuit said otherwise. In affirming a trial court decision,
the appellate panel slammed HUD and its employees for using their investigative
powers to chill the residents' politically insensitive speech, which included
letters to public officials, comments at public meetings and the publication of
a newsletter critical of the project. Despite the fact that these activities
clearly were protected by the First Amendment, the court said, the HUD
Investigated the residents for eight months, more than twice
as long as the 100-day period the Fair Housing Act presumes appropriate for
Advised the residents they had violated the act by
distributing "discriminatory" fliers.
Offered to drop the investigation if the residents ceased
speaking about the project.
Threatened the residents with fines of up to $100,000 if they
did not cease their opposition to the project.
Required the residents to produce copies of their publications
regarding the project.
Interrogated the residents regarding their views and public
Told the news media that the residents' activities violated
These actions, the court said, "would have chilled or silenced a
person of ordinary firmness from engaging in future First Amendment
activities." The actions therefore exposed the HUD employees to personal
financial liability, although, as the court noted, HUD likely will indemnify
the employees for any damages awarded.
As the rest of us should be, the judges were astounded by HUD's
blatant disregard of the residents' rights. Even though the residents "engaged
in activity paradigmatically protected by the First Amendment," HUD maintained
an investigation designed to silence their opposition. HUD claimed that the
residents' unpopular views gave it reason to intervene, but the court rejected
that notion, holding that advocacy of controversial viewpoints is "the essence
of First Amendment expression."
The court then dismissed HUD's argument that its investigation was
justified by the residents' purportedly illegal advocacy against the disabled.
Since the U.S. Supreme Court decided Brandenburg v.
Ohio in 1969, the appeals court said, the law has been clear
that "a person's speech or petitioning activity is not removed from the ambit
of First Amendment protection simply because it advocates an unlawful act."
Under Brandenburg, advocacy can be
proscribed only when it is intended and likely to incite "imminent lawless
action," a standard the residents' peaceful speech did not meet.
Finally, the HUD employees desperately claimed that their
investigation had not been aimed at the residents' speech but rather at a
lawsuit the residents had filed to stop the project. In the lawsuit, the
residents argued that the project's zoning had been improperly granted because
a member of the developer's board of directors also sat on the zoning board.
That lawsuit failed when a court held that a "good faith" exception in
California law allowed the zoning board to act in spite of the clear conflict
The 9th Circuit found HUD's claim to be disingenuous. During the
investigation, the court said, HUD employees made "little or no effort" to
investigate the merits of the residents' suit. HUD did not mention the lawsuit
in its threatening letter to the residents or in its questioning of them. Nor
did HUD's final investigative report contain any substantial information about
the lawsuit. HUD's only focus, the court correctly concluded, was to take a
course "certain to chill the exercise of the [residents'] First Amendment
The residents in this case are part of the country's newest minority
– those who dare to speak out against politically protected classes. In
the government's rush to protect these classes, it unfortunately often tramples
the constitutional rights of those who oppose this protection. The 9th Circuit
decision hopefully will remind the government that it cannot guarantee some
minorities' civil rights by denying those rights to others.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
Recent Doug Lee columns
Federal appeals panel: Investigation chilled outspoken residents' speech
Judges say federal agency's probe of three Californians opposed to housing project violated their First Amendment rights.
Browse more Doug Lee columns